Publication Date
3-1-2024
Abstract
Interpretive doctrines rarely spawn whole cottage industries, but the major questions doctrine is an exception. Given the ferment that the doctrine has inspired among scholars, an examination of the doctrine's relevance to immigration law is overdue. This Article provides that assessment. The major questions doctrine works best as a shorthand label for the traditional tools of statutory interpretation that the Supreme Court has recently invoked in Loper Bright Enterprises v. Raimondo. Those tools, which this Article calls the “congruence canon,” include statutory text, structure, history, and implementation. Trouble starts for the major questions doctrine when its convenience as an interpretive label obscures the relevance of these traditional tools. The Supreme Court's June 2023 decision in Sackett v. EPA restricting wetlands protection is an ominous sign that application of the doctrine is going astray. In immigration, the congruence canon can clarify analysis of current issues, including the legality of President Biden's new border rule and advance parole program; the Deferred Action for Childhood Arrivals (DACA) initiative; and a recent substantial expansion of authorized work for holders of student (F-1) visas. Assessment of each of these important policies benefits from a rigorous look at text, structure, history, and implementation. Examination of statutory structure reveals problems with the Biden border and advance parole initiatives, despite their commendable policy innovations. In contrast, past practice validates DACA and F-1 visas’ practical training expansion. The congruence canon is a productive approach because it prioritizes engagement with interpretive method and rejects interpretive labels’ insidious convenience.
First Page
575
Recommended Citation
Peter Margulies, Borderline Ambiguity: Major Questions and Immigration Law, 101 Denv. L. Rev. 575 (2024).